Pankiw v. Canadian Human Rights Commission et al., 2006 FC 1544

• Judge: Lemieux, J.
• Court: Federal Court (Canada)
• Case Date: December 21, 2006
• Jurisdiction: Canada (Federal)
• Citations: 2006 FC 1544;(2006), 305 F.T.R. 180 (FC)

Pankiw v. CHRC (2006), 305 F.T.R. 180 (FC)

MLB headnote and full text

Temp. Cite: [2007] F.T.R. TBEd. JA.021

Jim Pankiw (applicant) v. Canadian Human Rights Commission (respondent) and Keith Dreaver, Norma Fairbairn, Susan Gingell, Pamela Irvine, John Melenchuk, Richard Ross, Ailsa Watkinson, Harlan Weidenhammer and Carman Willet (respondents) and Speaker of the House of Commons (intervener)

(T-1329-05; 2006 FC 1544)

Indexed As: Pankiw v. Canadian Human Rights Commission et al.

Federal Court

Lemieux, J.

December 21, 2006.

Summary:

While Pankiw was a Member of Parliament, he authored and distributed an information brochure known as a "householder" to his constituents. Nine complainants alleged that Pankiw distributed a householder which contained discriminatory comments about Aboriginal people, contravening ss. 5, 12 and 14 of the Canadian Human Rights Act. The matter was referred to a Canadian Human Rights Tribunal. The Speaker of the House of Commons, who was granted intervener status, brought a preliminary motion arguing that the Tribunal did not have statutory or constitutional jurisdiction to investigate the complaints touching on Pankiw's activities as a Member of Parliament. The Tribunal dismissed the motion, holding that it had constitutional and statutory jurisdiction to hear and determine the complaints. Pankiw applied for judicial review of the Tribunal's decision.

The Federal Court dismissed the application.

Civil Rights - Topic 1850.8

Freedom of speech or expression - Limitations on - Political activities - While Pankiw was a Member of Parliament (M.P.), he authored and distributed an information brochure known as a "householder" to his constituents - Nine complainants alleged that Pankiw distributed a householder which contained discriminatory comments about Aboriginal people, contravening ss. 5, 12 and 14 of the Canadian Human Rights Act - The matter was referred to a Canadian Human Rights Tribunal - The Speaker of the House of Commons, who was granted intervener status, brought a preliminary motion arguing that the Tribunal did not have statutory or constitutional jurisdiction to investigate the complaints touching on Pankiw's activities as an M.P. - The Tribunal dismissed the motion - Pankiw applied for judicial review - Pankiw and the Speaker argued that the Tribunal's jurisdiction to hear and determine complaints relating to M.P.s carrying out their Parliamentary function in publishing and distributing householders to constituents would offend the principle of democracy in the Canadian Constitution in the context of an M.P.'s role in the House of Commons, which was necessarily anchored or based on: (1) the necessity of free political speech and the cardinal role played by the electorate in regulating political speech; (2) the necessary separation of the Crown (the executive and its agencies, commissions and tribunals) and the courts from the role and functions of M.P.s: and (3) the application of s. 2(b) of the Charter - The Federal Court dismissed the application - Permitting the Tribunal to examine the complaints with respect to the contents of Pankiw's householders would not infringe the principles of democracy, the separation of powers between the legislative and executive branches of the government or the guarantee of freedom of expression - See paragraphs 103 to 118.

Civil Rights - Topic 1863

Freedom of speech or expression - Denial of - What constitutes - [See Civil Rights - Topic 1850.8 ].

Civil Rights - Topic 7004

Federal, provincial or territorial legislation - Application of legislation - While Pankiw was a Member of Parliament (M.P.), he authored and distributed an information brochure known as a "householder" to his constituents - Nine complainants alleged that Pankiw distributed a householder which contained discriminatory comments about Aboriginal people, contravening ss. 5, 12 and 14 of the Canadian Human Rights Act (CHRA) - The matter was referred to a Canadian Human Rights Tribunal - The Speaker of the House of Commons, who was granted intervener status, brought a preliminary motion arguing that the Tribunal did not have statutory or constitutional jurisdiction to investigate the complaints touching on Pankiw's activities as an M.P. - The Tribunal dismissed the motion - Pankiw applied for judicial review - The Federal Court dismissed the application - Although Pankiw had not strongly pressed the argument that his activities did not fall within the scope of the CHRA, the court agreed with the Tribunal's reasoning that the statutory language of the CHRA was broad enough to encompass statements made by M.P.s in householders published and paid for by the House of Commons pursuant to the Parliament of Canada Act - See paragraphs 125 to 126.

Civil Rights - Topic 7069

Federal, provincial or territorial legislation - Commissions or boards - Jurisdiction - Complaints - General - While Pankiw was a Member of Parliament (M.P.), he authored and distributed an information brochure known as a "householder" to his constituents - Nine complainants alleged that Pankiw distributed a householder which contained discriminatory comments about Aboriginal people, contravening ss. 5, 12 and 14 of the Canadian Human Rights Act (CHRA) - The matter was referred to a Canadian Human Rights Tribunal - The Speaker of the House of Commons, who was granted intervener status, brought a preliminary motion arguing that the Tribunal did not have statutory or constitutional jurisdiction to investigate the complaints touching on Pankiw's activities as an M.P. - The Tribunal dismissed the motion - Pankiw applied for judicial review - The Federal Court dismissed the application - The court held that the Board of Internal Economy's exclusive jurisdiction to review the proper use of funds or services by an M.P. did not oust the Tribunal's jurisdiction to deal with a complaint of discrimination under the CHRA in respect of the content of a householder - Neither the Parliament of Canada Act nor the Board's Bylaws ousted the investigative and dispute resolution machinery of the CHRA - See paragraphs 119 to 122.

Civil Rights - Topic 7115

Federal, provincial or territorial legislation - Practice - Judicial review - While Pankiw was a Member of Parliament (M.P.), he authored and distributed an information brochure known as a "householder" to his constituents - Nine complainants alleged that Pankiw distributed a householder which contained discriminatory comments about Aboriginal people, contravening ss. 5, 12 and 14 of the Canadian Human Rights Act (CHRA) - The matter was referred to a Canadian Human Rights Tribunal - The Speaker of the House of Commons, who was granted intervener status, brought a preliminary motion arguing that the Tribunal did not have statutory or constitutional jurisdiction to investigate the complaints touching on Pankiw's activities as an M.P. - The Tribunal dismissed the motion - Pankiw applied for judicial review - The Federal Court dismissed the application - The court held that it should not deal, at this stage, with the issue of whether the sending of a householder to constituents was "a service customarily available to the general public" within the meaning of ss. 5 and 14 of the CHRA or whether the content of the householder breached s. 12 of that statute - Those issues were premature in that there had been no ruling on the issues and there was nothing for the court to review - See paragraphs 123 to 124.

Civil Rights - Topic 7173

Federal, provincial or territorial legislation - Application - Exceptions - Where jurisdiction ousted by parallel legislation - [See Civil Rights - Topic 7069 ].

Constitutional Law - Topic 5.2

General principles - Unwritten constitutional principles - Democracy - [See Civil Rights - Topic 1850.8 ].

Constitutional Law - Topic 5.5

General principles - Unwritten constitutional principles - Separation of powers, judicial independence and judicial impartiality - [See Civil Rights - Topic 1850.8 ].

Constitutional Law - Topic 355

Federal government - House of Commons - Board of Internal Economy - Jurisdiction -[See Civil Rights - Topic 7069 ].

Crown - Topic 2207

Crown privilege or prerogative - Parliamentary privilege - While Pankiw was a Member of Parliament (M.P.), he authored and distributed an information brochure known as a "householder" to his constituents - Nine complainants alleged that Pankiw distributed a householder which contained discriminatory comments about Aboriginal people, contravening ss. 5, 12 and 14 of the Canadian Human Rights Act - The matter was referred to a Canadian Human Rights Tribunal - The Speaker of the House of Commons, who was granted intervener status, brought a preliminary motion arguing that the Tribunal did not have statutory or constitutional jurisdiction to investigate the complaints touching on Pankiw's activities as an M.P. - The Tribunal dismissed the motion - Pankiw applied for judicial review - The Federal Court dismissed the application - The court held that parliamentary privilege did not apply to the sending of householders resulting in an absolute immunity from external review outside the House of Commons - Pankiw and the Speaker had failed to point to any authoritative recognition of the existence of any parliamentary privilege with respect to the contents of householders authored by an M.P. of the Canadian House of Commons and distributed to constituents - Nor could such immunity be justified by the doctrine of necessity in order to protect and ensure the ability of a federal legislator to do his or her job - See paragraphs 67 to 102.

Cases Noticed:

House of Commons et al. v. Vaid et al., [2005] 1 S.C.R. 667; 333 N.R. 314; 2005 SCC 30, consd. [para. 6].

R. v. Bernier (G.) (1994), 70 O.A.C. 400 (C.A.), refd to. [para. 35].

R. v. Fontaine, [1995] A.Q. No. 295 (C.A.), refd to. [para. 35].

Alberta Legislation, Re, [1938] S.C.R. 100, refd to. [para. 41].

Bell Canada v. Canadian Telephone Employees Association et al., [2003] 1 S.C.R. 884; 306 N.R. 34, refd to. [para. 45].

Taylor v. Canada (Attorney General), [2000] 3 F.C. 298; 253 N.R. 252 (F.C.A.), refd to. [para. 50].

Speaker of the Legislative Assembly (Ont.) v. Human Rights Commission (Ont.) (2001), 146 O.A.C. 125; 54 O.R.(3d) 595 (C.A.), refd to. [para. 52].

House of Commons et al. v. Vaid et al., [2002] 2 F.C. 583; 203 F.T.R. 175 (T.D.), refd to. [para. 55].

Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554; 149 N.R. 1, refd to. [para. 56].

New Brunswick Broadcasting Co. and Canadian Broadcasting Corp. v. Speaker of the House of Assembly (N.S.) et al., [1993] 1 S.C.R. 319; 146 N.R. 161; 118 N.S.R.(2d) 181; 327 A.P.R. 181, refd to. [para. 58].

Davison v. Duncan (1857), 119 E.R. 1233, consd. [para. 70].

Wason v. Walter, [1861-1873] All E.R. 1005, consd. [para. 70].

Stockdale v. Hansard (1839), 112 E.R. 1112, consd. [para. 75].

Roman Corp. Ltd. et al. v. Hudson's Bay Oil and Gas Co. et al., [1973] S.C.R. 820, affing. (1971), 23 D.L.R.(3d) 292 (Ont. C.A.), affing. (1971), 18 D.L.R.(3d) 134 (H.C.), consd. [para. 77].

A.-G. Ceylon v. de Livera, [1963] A.C. 103 (P.C.), refd to. [para. 78].

Ouellet No. 1, Re (1976), 67 D.L.R.(3d) 73 (Que. Sup. Ct.), consd. [para. 82].

Ouelett Nos. 1 and 2, Re (1976), 72 D.L.R.(3d) 95 (Que. C.A.), consd. [para. 86].

Clark v. Canada (Attorney General) (1977), 81 D.L.R.(3d) 33 (Ont. H.C.), consd. [para. 88].

Manley v. Telezone Inc. (2004), 180 O.A.C. 360; 69 O.R.(3d) 161 (C.A.), refd to. [para. 97].

Switzman v. Elbing, [1957] S.C.R. 285, consd. [para. 118].

R. v. Keegstra, [1990] 3 S.C.R. 697; 117 N.R. 1; 114 A.R. 81, consd. [para. 118].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335, refd to. [para. 118].

Taylor and Western Guard Party v. Canadian Human Rights Commission, [1990] 3 S.C.R. 892; 117 N.R. 191, consd. [para. 118].

R. v. Sharpe (J.R.), [2001] 1 S.C.R. 45; 264 N.R. 201; 146 B.C.A.C. 161; 239 W.A.C. 161; 2001 SCC 2, consd. [para. 118].

Harper v. Canada (Attorney General), [2004] 1 S.C.R. 827; 320 N.R. 49; 348 A.R. 201; 321 W.A.C. 201; 2004 SCC 33, consd. [para. 118].

Authors and Works Noticed:

Halsbury's Laws of England (3rd Ed. 1955), vol. 28, pp. 457, 458 [para. 90].

Maingot, J.P. Joseph, Parliamentary Privilege in Canada (2nd Ed. 1997), pp. 47 [para. 72]; 74 [para. 114].

May, Thomas Erskine, Parliamentary Practice (23rd Ed. 2004), generally [para. 72]; p. 100 [para. 75].

Counsel:

Steven Chaplin and Melanie J. Mortensen, for the applicant and the intervenor;

Philippe Dufresne, for the respondents.

Solicitors of Record:

Office of the Law Clerk and Parliamentary Counsel, House of Commons, for the applicant;

Canadian Human Rights Commission, for the respondents.

This application was heard on June 26 and 27, 2006, at Ottawa, Ontario, before Lemieux, J., of the Federal Court, who delivered the following decision on December 21, 2006.